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State of New Jersey v. Kalle Howard

July 12, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KALLE HOWARD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2081.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 4, 2011

Before Judges Reisner and Alvarez.

On July 20, 2007, defendant Kalle Howard was sentenced in accord with a plea bargain to an aggregate term of six years imprisonment subject to three years of parole ineligibility as an extended-term offender on three counts of possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. He now appeals and we affirm.

On December 14, 2006, prior to the entry of defendant's guilty plea, the trial court denied his motion to suppress. Because defendant's principal issue on this appeal is the denial of the motion, we summarize the circumstances as set forth in the record of that hearing and the judge's statement of reasons, filed after the notice of appeal pursuant to Rule 2:5-1(b).

On February 26, 2006, Detective Joseph Frost, Sergeant Burlos*fn1 , and Officer Linda Cantalupo, all of the Newark Police Department's Narcotics Enforcement Task Force, were performing "vertical narcotics checks," dressed in plain clothes, in the Felix Fuld Public Housing Complex. The phrase means the officers actually patrolled the length of the staircase of each building. Both Frost and Cantalupo testified on behalf of the State.

The officers considered the complex to be not only an "extremely high narcotic area," but "violent" as well, as a Newark police officer was shot there two years before. In fact, they heard the sound of a gunshot as they were on their way down a flight of stairs in a particular apartment building.

Two of the officers immediately ran to the first floor and saw defendant coming through the front door of the building into the vestibule, holding his right arm to a bulge on his side. Cantalupo called in the shots before joining the other two officers on the first floor. They identified themselves, displayed their badges, and drew their weapons as they "didn't know what he had." The officers instructed defendant to put his hands up against the wall and, as he lifted them up, a "big glassy bag fell out," later found to contain 100 red-capped vials of cocaine. Once he was arrested, three more bags of heroin were found on his person. When the dispatch tape related to the incident was later played back, Cantalupo's voice was heard calling in a "644," or shots fired, and, later on, drug activity. That shots were being fired was reported first.

Defendant's paramour, Twanda Knight, testified at the suppression hearing at significant variance from the officers. She said that on the night in question she was in her apartment with her children. She claimed that a police officer walked in, asked if she was defendant's "baby mother," told her the police knew defendant carried guns, and stated, as a result, that they wanted to search the apartment. When Knight informed the officer that defendant did not live there, the officer replied that if she did not consent, he would obtain a warrant and have the Division of Youth and Family Services take her children. As a result, she let the officer search through defendant's belongings. Knight also claimed the officer who initially entered told her that "he had a problem with Kalle before[,]" and that the woman officer asked for her name. The officer who ultimately searched through defendant's belongings told her she could be prosecuted if she "tr[ied] to go against" the officers.

Knight further testified that a total of three officers, including a woman and Frost, pushed defendant through the door and onto the couch as they entered the apartment. She said he was handcuffed and that police brought him in before the officers conducted the search. She said the items removed from defendant's belongings were placed in a shoebox. Knight agreed there was a gunshot, but claimed she heard the sound after the officers were in her apartment, and after the search of the premises had begun.

The judge's statement of reasons included a recitation of the circumstances as described above. The judge concluded that minor differences between individual officers' testimony were inconsequential; in fact, the discrepancies merely heightened the officers' credibility. Their stories were not polished and practiced presentations of a well-rehearsed narrative. The judge did not find Knight's testimony credible, not only because the story was inherently illogical and therefore suspect, but because Knight's acknowledged relationship with defendant established bias on her part.

The application was accordingly denied based on the plain view doctrine. The judge reasoned that the officers had a sufficient basis to make an investigative stop of defendant pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Once defendant was stopped, and the plastic bag fell out of his hand, the contraband came into plain ...


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